declining to impose a duty on sellers of residential lots regarding disclosure of knowledge affecting fair market value where “the [p]laintiffs have found nothing to support such a holding in the Florida case law.”
How later courts described this case
- declining to impose a duty on sellers of residential lots regarding disclosure of knowledge affecting fair market value where “the [p]laintiffs have found nothing to support such a holding in the Florida case law.”
Written by the judges who cited it.
The opinion
United States District Court
for the
Southern District of Florida
Geron Brown, Plaintiff, )
)
Civil Action No. 22-22369-Civ-Scola
v. )
)
Metro by T-Mobile, Defendant. )
Order
This matter is before the Court on Defendant T-Mobile USA, Inc. d/b/a
Metro by T-Mobile’s motion to dismiss. (ECF No. 8.) Plaintiff Geron Brown failed
to timely respond to T-Mobile’s motion to dismiss. After careful consideration of
the briefing, the record, and the relevant legal authorities, the Court grants the
Defendant’s motion. (ECF No. 8.)
1. Background
Plaintiff Geron Brown, proceeding pro se, alleges that Defendant T-Mobile
negligently failed to secure his personal data, including his “PIN, password, and
email,” as well as his “medical records,” from a third-party hacker. (Compl., ECF
No. 1-1, ¶¶ 4-5.) The data breach in question occurred on March 13, 2022. (Id.
¶ 4.) The Plaintiff seeks $25,500,000 in damages for this data breach. (Id. ¶ 1.)
Defendant T-Mobile removed this case from Florida state court on July 28,
2022, based on diversity jurisdiction over the Plaintiff’s negligence claim (Not. of
Removal, ECF No. 1) and now moves to dismiss the complaint for failure to state
a claim upon which relief may be granted. (Mot. at 1.)
2. Legal Standard
A court considering a motion to dismiss, filed under Federal Rule of Civil
Procedure 12(b)(6), must accept all of the complaint’s allegations as true,
construing them in the light most favorable to the plaintiff. See Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only
contain a short and plain statement of the claim showing that the pleader is
entitled to relief, a plaintiff must nevertheless articulate “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—
but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (internal punctuation omitted) (quoting Fed. R. Civ.
P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her
“claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Regardless of a plaintiff’s allegations, “the court may dismiss a complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on the basis of a
dispositive issue of law, no construction of the factual allegations will support the
cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d
1171, 1174 (11th Cir. 1993).
3. Analysis
As an initial matter, the Court can, and does, grant the motion to dismiss
based on the Plaintiff’s failure to respond to the motion at all. See Local Rule
7.1(c) (“each party opposing a motion shall file and serve an opposing
memorandum of law no later than fourteen (14) days after service of the motion.
Failure to do so may be deemed sufficient cause for granting the motion by
default.”); see also, e.g., Bradshaw v. Integon Nat'l Ins. Co., No. 19-24806-CIV,
2019 WL 6716364, at *1 n.1 (S.D. Fla. Dec. 10, 2019) (Scola, J.) (“Bradshaw’s
failure to respond to the complaint constitutes an independent basis to dismiss
the complaint.”). The Plaintiff failed to respond to the motion by the original
deadline of August 18, 2022 and failed again to respond to the motion despite the
Court’s entry of an order requiring a response to the motion not later than August
30, 2022. (Order, ECF No. 11.) This Order alerted the Plaintiff to the possibility
that his complaint would be dismissed if he failed to respond. (Id.) The Plaintiff
did not comply with the Order, but instead filed two discovery requests with the
Court on August 30. (Mots., ECF Nos. 12, 13.)
For reasons of judicial efficiency, the Court will also briefly address T-
Mobile’s arguments in its motion to dismiss. T-Mobile argues that Florida does
not recognize “a common law duty to safeguard information from a criminal
cyberattack.” (Mot. At 3.) The determination of a duty is ultimately a legal
question for courts to resolve, and the Court declines to adopt such a duty in the
absence of Florida case law expounding it. See, e.g., Virgilio v. Ryland Grp., Inc.,
680 F.3d 1329, 1339-41 (11th Cir. 2012) (declining to impose a duty on sellers of
residential lots regarding disclosure of knowledge affecting fair market value
where “the [p]laintiffs have found nothing to support such a holding in the Florida
case law.”). Because the Plaintiff bases his sole claim for negligence on such a
duty, the complaint also fails to state a claim upon which relief may be granted as
a matter of law. See, e.g., id.
4. Conclusion
For the reasons stated above, the Court grants T-Mobile’s motion to
dismiss (ECF No. 8.) The case is dismissed without prejudice, and with leave to
file a new civil action. The Clerk is directed to close this case. Any pending
motions are denied as moot.
Done and ordered in Miami, Florida, on September 8, 2022.
i N. Scola, Jr.
United States District Judge